{UAH} Kampala City: why Justice Nyanzi didn't excuse himself from hearing Lukwago's JR application
|
9:37 AM |
No comments |
Lawyer Martin Mwabustya, who represented ex-AG Peter Nyombi, failed to present any evidence, to support his allegation of bias against Justice Nyanzi of the High Court of Uganda. There is no single iota of evidence, which was presented by Mr. Mwabustya in their recusal application, to suggest actual bias, the appearance of bias, or a conflict of interests by the Judge. Mr Martin Mwabustya, failed to adduce any evidence, to support his vexatious claim of bias, against Justice Nyanzi of the High Court of Uganda, upon which he requested the Judge to disqualify himself.
Without providing any evidence, the ex-AG Nyombi urged that Justice Nyanzi is biased because he accepted the application of an interim court injuction, halting the council meeting of 25 November 2013, and issued another court order on 29th November 2014, which nullified the voting and impeachment of the Lord Mayor that was carried, in total disregard of the court injunction.
According to court documents, the ex-AG Nyombi’s allegation of bias, emanated from the interim Court Injunction currently in force, which was duly issued by the High Court, on the early morning of Monday, 25 November 2013,
obliging the Minister for Kampala, to from refrain from implementing the recommendations of the report from the Justice Catherine Bamugemereire tribunal, pending determination of the main judicial review application, challenging the process leading up-to the decision, on grounds of illegality, irrationality, bias, procedural impropriety and acting beyond jurisdiction. The interim injunction was presented to Minister Tumwebaze by Councillor Allan Ssewanyana, in a timely fashion, in the council meeting of 25 November 2014. The onus was on Lawyers Mwabustya and Nyombi to demonstrate that the court injunction and other subsequent judicial decisions, were made by a judge with a conflict of interests.
The basic principles or guidelines governing the grant of interim injunctions are laid down in the House of Lord’s Judgement of American Cynamid Co v Ethicon Ltd [2001]. Interim mandatory injunctions are court orders used to prevent a party from doing a particular act, which will in some way damage or injure the other party. Interim injunctive relief is both temporary and discretionary. In any case, any High Court Judge who has jurisdiction to conduct the trial of the action has the power to grant injunction in that action.
Lukwago’s defence lawyers presented cogent evidence to support their client’s interim injunction; their evidence showed that if the injunction were refused by the court, the judicial review applicant would suffer irreparable damages or losses that could not be adequately compensated in damages following a successful trial; and their evidence also showed that there was a greater risk of injustice to the complainant in denying him interim injunctive relief than there was to the respondent.
State Attorney Martin Mwabustya objected to the application, but lost. It was within the judicial
power of the High Court Nyanzi, to grant an interim injunction and other orders, which were later disobeyed by some executive public officials. Article 257 (p) of the Constitution of Uganda defines “judicial power” as the power to dispense justice among persons and between persons and the State under the laws of Uganda. Article 129(1)(c) of the Constitution of Uganda says: “The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of the High Court of Uganda.”
The High Court has supervisory jurisdiction over any person, body or authority exercising quasi-judicial function, and in some proceedings has discretion to grant appropriate injunctive relief, where the interests of dispensing justice require to do so. There is no evidence to show that Justice Nyanzi acted beyond the scope or ambit of the judicial power available to High Court Judges. Article 139(1) of the Constitution of Uganda says: “The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law.”
State Attorney Martin Mwabustya representing the Attorney General’s office did object to Justice Nyanzi, pursuant to their dismissed recusal application. However, many people would agree that the outcome came as disappointment to the Attorney General and some other politicians. It is clear that the allegation of bias was a vexatious one, by ex-AG Nyombi, designed to deprive Justice Nyanzi of his good name. The recusal application was obviously misconceived and should never have been brought in the first place. After losing on previous cases, they started making suggestions of bias against Justice Nyanzi. The classic case, where a litigant or party to a case, was dissatisfied as to the dismissal of her case and resorted to making unfounded allegations of bias against the Judge is the authority of Hackney LBC v Sagnia [2003] where Justice Rimer J observed: “the false logic in which a claimant says I have a strong case, I have lost so the court must be biased against me. This judge was not biased nor gave the appearance of bias against the petitioner, these allegations are unfounded.”
Apart from making generalised assertions of bias, the Attorney General’s representative, Mr Mwabustya, failed to adduce any reliable evidence, to support his application. This explains why their objection, was considered and dismissed by the Justice Nyanzi.. In the judgement of Ansar v Lloyds TSB Bank Plc [2006] Justice Burton J set this relevant principle: “it is important for justice to be done, but also that judicial officers discharge their duty to sit and do not accede too readily to suggestions of bias, so as to encourage parties to believe that seeking disqualification of a judge, their case may be tried by someone thought more likely to decide in their favour.” The apparent complete absence of evidence, to support the claim of bias, after losing previous cases, hugely undermined the Attorney General’s recusal application.
Using the guidance from Ansar v Lloyds TSB Bank Plc, Justice Nyanzi was cautious to prevent encouragement to attempts by a party or Attorney General to use recusal procedures illegitimately. If the mere making of an insubstantial objection were sufficient to lead Justice Nyanzi, to decline to hear the pending case, parties would be encouraged to try to cause unreasonable delay and to influence the composition of the bench. Justice Nyanzi was cautious to avoid prevent encouragement to attempts by a party or Attorney General to use procedures for disqualification illegitimately. If the mere making of an insubstantial objection were sufficient to lead Justice Nyanzi, to decline to hear the pending main application, the Attorney General would be encouraged to try to cause inordinate delay and to influence the composition of the bench.
The question whether an appearance of bias or possible conflict of interest is sufficient to disqualify a judge from hearing a case is the subject of the present Commonwealth jurisprudence, 1995 Constitution Leadership Code of Uganda, and International Law, which guide High Court Judges in specific situations.
There is sufficient credible evidence on public records, which shows no real possibility that Justice Nyanzi by his conduct, had shown that he unfairly favoured any party to the case [Erias Lukwago v Attorney General] expected to heard and determined soon. The relevant test for apparent bias was definitively set out by the House of Lords decision in Porter v Magill [2002], where Lord Hope of Craighead at paragraph 110 set out the test: “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Any fair-minded and informed observer, properly informed as to the nature of on-going court proceedings, as well as in full possession of the facts and well aware of the history of the case, would concluded that there was no real possibility that Justice Nyanzi by his conduct had shown that he unfairly favoured any party to the case. As originally stated in R v Gough [1993] the relevant observer is: “a reasonable member of the public neither unduly complaint nor naïve nor unduly cynical or suspicious, and adopting a balanced approach.”
While ex-AG Nyombi, had requested Justice Nyanzi, to disqualify himself from hearing the main application, he failed to present any supporting evidence, to show that the judicial decision-maker or a member of his family (family as defined in the Bangalore principles), has a financial interest in the outcome of the case. The relevant common law on automatic disqualification was definitively set out in the Judgment of Dimes v Proprietors of Grand Junction Canal (1852) by Lord Campbell, in these terms: “the decision maker is automatically disqualified when he or she had a direct pecuniary or proprietary interest in the outcome of the proceedings.” Automatic disqualification of Justice Nyanzi could not have possibly happened, due to absence of evidence to prove that the judge had an actual interest in the case, or was going to judge a matter involving his
own interests contrary to the rule against bias. If Judge Nyanzi had an interest in the outcome of the case, he would have certainly disclosed it and disqualified himself, or the AG’s representative would have made known that interest, in his recusal application.
According to court documents, the ex-AG’s representative Mwabustya, failed to produce any evidence to prove that Justice Nyanzi, had or has a close personal friendship with a party, claimant, or witness to the case (Erias Lukwago Vs Attorney General); to warrant his automatic qualification, from hearing and determining the main judicial review application. In the Judgement Group Ltd v Morrison [2006], a legal principle of automatic disqualification to cases where the decision-maker had a past friendship with a witness or party to a case, was set out.
The record shows that Justice Nyanzi, publicly displayed no bias toward or against any person in the course of his duty, nor did his judicial decisions or orders give rise to an imputation of bias or its reasonable apprehension. The relevant Commonwealth precedent on a reasonable apprehension of bias, was set out in the Judgement of Hot Holdings Pty Ltd v Creasy [2002] at para 68, by Justice McHugh J, in these terms: “whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision.”
Furthermore, in the Attorney General’s recusal application there was no evidence to show that Justice Nyanzi, had expressed views on the issues in question (Erias Lukwago Vs Attorney General), in such extreme and unbalanced, so as to cast doubt upon his ability to adjudge the issues with an objective judicial mind. The relevant test was indicated by the judgment of the British Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] IRLR 96, at paragraph 25: “… if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind ….”
Unlike ex-AG Nyombi who was shamefully expelled from the Uganda Law Society
on 29 August 2013, there is a widely held perception that Justice Nyanzi acts in good faith, in the sense that he performs his public functions honestly, for the proper purpose, on relevant grounds, and within power. In Board of Education v Rice [1911] Lord Lore burn set a precedent on the duty of decision-makers to act in good faith in these precise terms; “they must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything.” In French J in Applicant WAFV of 2002 v Refugee Review Tribunal [2003] at para 52: Good faith requires “more than an absence of bad faith. It requires a conscientious approach to the exercise of power.”
The record shows that Justice Nyanzi acted without bias and prejudice and in accordance with his unbiased assessment of the facts and his competent understanding of the relevant laws, without inapt connections with politicians and improper influences. Justice Nyanzi was and is still free from of extraneous influences, inducements, directives, outside pressures and threats.
No evidence shows that he acts under dictation, or exercises a judicial power at the direction of another person or body. Principle 2 of the UN Basic Principles on the Independence of the Judiciary, 1985 [“UNPIJ”] states: “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” This international law provision is binding on judicial officers of Uganda.
There is ample cogent evidence on public records which demonstrates that Justice Nyanzi performed his judicial duties independently and equitably, as required by Article 128(1) & (2) of the present Constitution of Uganda, 1995 which states: “in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority; No person or authority shall interfere with the courts or judicial offices in the exercise of their judicial functions.”
Article 129(1)(c) of the Constitution of Uganda says: “The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of the High Court of Uganda.” Principle 3 of the UN Basic Principles on the Independence of the Judiciary, 1985 [“UNPIJ”] which says: “the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.”
No evidence shows that Justice Nyanzi was not motivated by favouritism or personal animosity towards any party to the proceedings. The allegation of bias was based on personal sentiments, not on evidence. Judge Nyanzi evidently performed his judicial duties with honesty, impartiality, integrity, professionalism, care and diligence. Pursuant to Article 233(b)(i) of the Ugandan Constitution, the Leadership Code of Conduct prohibits conduct likely to compromise the honesty, impartiality and integrity of public officials. Justice Nyanzi did not act in the knowledge of a real or perceived conflict of interests, contrary to his legal obligations under Sections 2(1), 8 and 12 of the Leadership Code Act 2002 [“LCA”].
Pursuant to Article 42 of the Constitution of Uganda 1995 a person aggrieved by a decision taken against him or her by administrative official or body has a right of appeal to a court of law to review the decision. Article 42 of the Constitution says: “Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Article 139(1) of the Constitution of Uganda says: “The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law.”
There was no evidence from ex-AG Nyombi which shows expression of concluded views out of court by Justice Nyanzi, which would have given rise to issues of perceived bias or prejudgment in the pending judicial review application to be decided soon. His provisional views expressed in court, mainly highlighted grounds in the JR application, including Illegality, Irrationality, Bias, Procedural Impropriety, and the tribunal
acting ultra vires beyond its jurisdiction.
Article 139 (2) of the Constitution says: “subject to the provisions of this Constitution and any other law, the decisions of any court lower than the High Court shall be appealable to the High Court.” The role of the High court is to decide whether the process by which the tribunal decision was reached, was lawful or unlawful. It is important to understand that the court’s focus is primarily upon the process leading to the making of the tribunal decision. The claimant has a likelihood of succeeding, because his application demonstrates that in the process that led to the decision of the Justice Catherine Bamugemereire’s tribunal recommendations: (a) failed to take into account relevant material considerations when reaching the decision (b) exclusively took into account extraneous considerations (c) recommended a decision that no reasonable decision-maker could reach (d) recommended a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had his mind to the question to be decided could have arrived (e) acted ultra vires or acted beyond its prescribed powers.
According to the JR application of the elected Kampala Mayor Lukwago, the applicant is seeking a Quashing Order, formerly known as an order of certiorari (i.e. a court order quashing Justice Bamugemereire’s report). A quashing order can defined as a discretionary remedy, obtained by an application of judicial review, in which the High Court orders decisions of administrative tribunals, inferior courts and administrative public authorities to be brought before it and nullify them if they are found to be ultra vires or contravened the law.
A closer look at Lukwago’s JR application reveals that it has a real reasonable prospect of sucess, because it is based on reliable facts and evidence as well as founded on the relevant provisions of the Law and proper appreciation of the court procedures in place.
By legal definition judicial review is a High Court procedure for challenging administrative actions. It enables individuals or groups to challenge in court the lawfulness of decisions taken by Ministers, Government Departments, tribunals and other public bodies. The jurisdiction of judicial review also extends to decisions of tribunals and inferior courts. In the case of R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322 Mr Justice Simon Brown (now Lord Brown of Eaton Under Heywood) observed that “judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.” Judicial review is the procedure by which a person can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.
The recusal application was not meritorious, because it was not founded on the provisions of the law relating to the bias, and most importantly the request was based ON unreliable information that tends logically to show the non-existence of facts relevant to the bias accusation.
References:
1. Eriasa Mukiibi Sserunjogi, “Law society suspends AG Peter Nyombi” The Monitor, 30 August 2013
URL: http://www.monitor.co.ug/News/National/Law-society-suspends-AG-Peter-Nyombi/-/688334/1973054/-/11rr68i/-/index.html
2. Ivan Rugambwa, “ULS suspends attorney general Peter Nyombi” The Independent, 2 By Ivan Rugambwa
URL: http://www.independent.co.ug/news/news/8179-uls-suspends-attorney-general-peter-nyombi
3. Derrick Kiyonga, “Judge blasts AG Nyombi” The Observer, 04 February 2014
URL:http://www.observer.ug/index.php?option=com_content&task=view&id=29972&Itemid=114
4. Anthony Wesaka, “You don’t know the law, judge tells AG” The Monitor, 05 February 2014
URL: http://www.monitor.co.ug/News/National/You-don-t-know-the-law--judge-tells-AG/-/688334/2193094/-/xydj8sz/-/index.html
5. Anthony Wesaka “Excitement as court rules Lukwago is still Kampala Lord Mayor,” The Daily Monitor, 29 November 2013
URL: http://www.monitor.co.ug/News/National/Excitement-as-court-rules-Lukwago-is-still-Kampala/-/688334/2092324/-/b12d1nz/-/index.html
4. Lukwago v Attorney General & Anor
URL: http://www.ulii.org/ug/judgment/high-court/2013/266
6. Gloria Nakiyimba “Court nullifies Kampala mayor impeachment as city operations shut down” Rfi English, Friday 29 November 2013
URL: http://www.english.rfi.fr/africa/20131129-court-nullifies-kampala-mayor-impeachment-city-operations-shut-down
7. Derick Kiyonga and Siraje Lubwama, “Judge restores Lukwago, blasts Attorney General” The Observer, 28 November 2013
URL:http://www.observer.ug/index.php?option=com_content&task=view&id=28873&Itemid=114
8. Anthony Wesaka, “High Court freezes Lukwago censure vote” The Daily Monitor, 28 November 2013
URL: http://www.monitor.co.ug/News/National/High-Court-freezes-Lukwago-censure-vote/-/688334/2091594/-/136bywnz/-/index.html
9. Mirembe Martina, “KCCA Councilors Told to Refund Money of Missed Meetings” Uganda Picks
URL: http://www.ugandapicks.com/2013/02/kcca-councilors-told-to-refund-money-of-missed-meetings-72950.html
10. Betty, “Nambozze Impasse at KCCA is not about Lukwago” The Observer, 14 March 2013
URL:http://www.observer.ug/index.php?option=com_content&view=article&id=24203:impasse-at-kcca-is-not-about-lukwago
By Paul Kiwuuwa, “KCCA councillors ordered to refund allowances” Feb 11, 2013
URL: http://www.newvision.co.ug/news/639710-kcca-councillors-ordered-to-refund-allowances.html
WBS TV, “Prime Minister named in deals”
URL: http://www.wbs-tv.co.ug/content.php?page=storydetails&ID=351#.Uvc2bfuIlU0
--
H.OGWAPITI
-----------------------------------------------------
"To announce that there must be no criticism of the president, or that we are to stand by the president right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."
---Theodore Rooseve
Without providing any evidence, the ex-AG Nyombi urged that Justice Nyanzi is biased because he accepted the application of an interim court injuction, halting the council meeting of 25 November 2013, and issued another court order on 29th November 2014, which nullified the voting and impeachment of the Lord Mayor that was carried, in total disregard of the court injunction.
According to court documents, the ex-AG Nyombi’s allegation of bias, emanated from the interim Court Injunction currently in force, which was duly issued by the High Court, on the early morning of Monday, 25 November 2013,
obliging the Minister for Kampala, to from refrain from implementing the recommendations of the report from the Justice Catherine Bamugemereire tribunal, pending determination of the main judicial review application, challenging the process leading up-to the decision, on grounds of illegality, irrationality, bias, procedural impropriety and acting beyond jurisdiction. The interim injunction was presented to Minister Tumwebaze by Councillor Allan Ssewanyana, in a timely fashion, in the council meeting of 25 November 2014. The onus was on Lawyers Mwabustya and Nyombi to demonstrate that the court injunction and other subsequent judicial decisions, were made by a judge with a conflict of interests.
The basic principles or guidelines governing the grant of interim injunctions are laid down in the House of Lord’s Judgement of American Cynamid Co v Ethicon Ltd [2001]. Interim mandatory injunctions are court orders used to prevent a party from doing a particular act, which will in some way damage or injure the other party. Interim injunctive relief is both temporary and discretionary. In any case, any High Court Judge who has jurisdiction to conduct the trial of the action has the power to grant injunction in that action.
Lukwago’s defence lawyers presented cogent evidence to support their client’s interim injunction; their evidence showed that if the injunction were refused by the court, the judicial review applicant would suffer irreparable damages or losses that could not be adequately compensated in damages following a successful trial; and their evidence also showed that there was a greater risk of injustice to the complainant in denying him interim injunctive relief than there was to the respondent.
State Attorney Martin Mwabustya objected to the application, but lost. It was within the judicial
power of the High Court Nyanzi, to grant an interim injunction and other orders, which were later disobeyed by some executive public officials. Article 257 (p) of the Constitution of Uganda defines “judicial power” as the power to dispense justice among persons and between persons and the State under the laws of Uganda. Article 129(1)(c) of the Constitution of Uganda says: “The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of the High Court of Uganda.”
The High Court has supervisory jurisdiction over any person, body or authority exercising quasi-judicial function, and in some proceedings has discretion to grant appropriate injunctive relief, where the interests of dispensing justice require to do so. There is no evidence to show that Justice Nyanzi acted beyond the scope or ambit of the judicial power available to High Court Judges. Article 139(1) of the Constitution of Uganda says: “The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law.”
State Attorney Martin Mwabustya representing the Attorney General’s office did object to Justice Nyanzi, pursuant to their dismissed recusal application. However, many people would agree that the outcome came as disappointment to the Attorney General and some other politicians. It is clear that the allegation of bias was a vexatious one, by ex-AG Nyombi, designed to deprive Justice Nyanzi of his good name. The recusal application was obviously misconceived and should never have been brought in the first place. After losing on previous cases, they started making suggestions of bias against Justice Nyanzi. The classic case, where a litigant or party to a case, was dissatisfied as to the dismissal of her case and resorted to making unfounded allegations of bias against the Judge is the authority of Hackney LBC v Sagnia [2003] where Justice Rimer J observed: “the false logic in which a claimant says I have a strong case, I have lost so the court must be biased against me. This judge was not biased nor gave the appearance of bias against the petitioner, these allegations are unfounded.”
Apart from making generalised assertions of bias, the Attorney General’s representative, Mr Mwabustya, failed to adduce any reliable evidence, to support his application. This explains why their objection, was considered and dismissed by the Justice Nyanzi.. In the judgement of Ansar v Lloyds TSB Bank Plc [2006] Justice Burton J set this relevant principle: “it is important for justice to be done, but also that judicial officers discharge their duty to sit and do not accede too readily to suggestions of bias, so as to encourage parties to believe that seeking disqualification of a judge, their case may be tried by someone thought more likely to decide in their favour.” The apparent complete absence of evidence, to support the claim of bias, after losing previous cases, hugely undermined the Attorney General’s recusal application.
Using the guidance from Ansar v Lloyds TSB Bank Plc, Justice Nyanzi was cautious to prevent encouragement to attempts by a party or Attorney General to use recusal procedures illegitimately. If the mere making of an insubstantial objection were sufficient to lead Justice Nyanzi, to decline to hear the pending case, parties would be encouraged to try to cause unreasonable delay and to influence the composition of the bench. Justice Nyanzi was cautious to avoid prevent encouragement to attempts by a party or Attorney General to use procedures for disqualification illegitimately. If the mere making of an insubstantial objection were sufficient to lead Justice Nyanzi, to decline to hear the pending main application, the Attorney General would be encouraged to try to cause inordinate delay and to influence the composition of the bench.
The question whether an appearance of bias or possible conflict of interest is sufficient to disqualify a judge from hearing a case is the subject of the present Commonwealth jurisprudence, 1995 Constitution Leadership Code of Uganda, and International Law, which guide High Court Judges in specific situations.
There is sufficient credible evidence on public records, which shows no real possibility that Justice Nyanzi by his conduct, had shown that he unfairly favoured any party to the case [Erias Lukwago v Attorney General] expected to heard and determined soon. The relevant test for apparent bias was definitively set out by the House of Lords decision in Porter v Magill [2002], where Lord Hope of Craighead at paragraph 110 set out the test: “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Any fair-minded and informed observer, properly informed as to the nature of on-going court proceedings, as well as in full possession of the facts and well aware of the history of the case, would concluded that there was no real possibility that Justice Nyanzi by his conduct had shown that he unfairly favoured any party to the case. As originally stated in R v Gough [1993] the relevant observer is: “a reasonable member of the public neither unduly complaint nor naïve nor unduly cynical or suspicious, and adopting a balanced approach.”
While ex-AG Nyombi, had requested Justice Nyanzi, to disqualify himself from hearing the main application, he failed to present any supporting evidence, to show that the judicial decision-maker or a member of his family (family as defined in the Bangalore principles), has a financial interest in the outcome of the case. The relevant common law on automatic disqualification was definitively set out in the Judgment of Dimes v Proprietors of Grand Junction Canal (1852) by Lord Campbell, in these terms: “the decision maker is automatically disqualified when he or she had a direct pecuniary or proprietary interest in the outcome of the proceedings.” Automatic disqualification of Justice Nyanzi could not have possibly happened, due to absence of evidence to prove that the judge had an actual interest in the case, or was going to judge a matter involving his
own interests contrary to the rule against bias. If Judge Nyanzi had an interest in the outcome of the case, he would have certainly disclosed it and disqualified himself, or the AG’s representative would have made known that interest, in his recusal application.
According to court documents, the ex-AG’s representative Mwabustya, failed to produce any evidence to prove that Justice Nyanzi, had or has a close personal friendship with a party, claimant, or witness to the case (Erias Lukwago Vs Attorney General); to warrant his automatic qualification, from hearing and determining the main judicial review application. In the Judgement Group Ltd v Morrison [2006], a legal principle of automatic disqualification to cases where the decision-maker had a past friendship with a witness or party to a case, was set out.
The record shows that Justice Nyanzi, publicly displayed no bias toward or against any person in the course of his duty, nor did his judicial decisions or orders give rise to an imputation of bias or its reasonable apprehension. The relevant Commonwealth precedent on a reasonable apprehension of bias, was set out in the Judgement of Hot Holdings Pty Ltd v Creasy [2002] at para 68, by Justice McHugh J, in these terms: “whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision.”
Furthermore, in the Attorney General’s recusal application there was no evidence to show that Justice Nyanzi, had expressed views on the issues in question (Erias Lukwago Vs Attorney General), in such extreme and unbalanced, so as to cast doubt upon his ability to adjudge the issues with an objective judicial mind. The relevant test was indicated by the judgment of the British Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] IRLR 96, at paragraph 25: “… if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind ….”
Unlike ex-AG Nyombi who was shamefully expelled from the Uganda Law Society
on 29 August 2013, there is a widely held perception that Justice Nyanzi acts in good faith, in the sense that he performs his public functions honestly, for the proper purpose, on relevant grounds, and within power. In Board of Education v Rice [1911] Lord Lore burn set a precedent on the duty of decision-makers to act in good faith in these precise terms; “they must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything.” In French J in Applicant WAFV of 2002 v Refugee Review Tribunal [2003] at para 52: Good faith requires “more than an absence of bad faith. It requires a conscientious approach to the exercise of power.”
The record shows that Justice Nyanzi acted without bias and prejudice and in accordance with his unbiased assessment of the facts and his competent understanding of the relevant laws, without inapt connections with politicians and improper influences. Justice Nyanzi was and is still free from of extraneous influences, inducements, directives, outside pressures and threats.
No evidence shows that he acts under dictation, or exercises a judicial power at the direction of another person or body. Principle 2 of the UN Basic Principles on the Independence of the Judiciary, 1985 [“UNPIJ”] states: “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” This international law provision is binding on judicial officers of Uganda.
There is ample cogent evidence on public records which demonstrates that Justice Nyanzi performed his judicial duties independently and equitably, as required by Article 128(1) & (2) of the present Constitution of Uganda, 1995 which states: “in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority; No person or authority shall interfere with the courts or judicial offices in the exercise of their judicial functions.”
Article 129(1)(c) of the Constitution of Uganda says: “The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of the High Court of Uganda.” Principle 3 of the UN Basic Principles on the Independence of the Judiciary, 1985 [“UNPIJ”] which says: “the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.”
No evidence shows that Justice Nyanzi was not motivated by favouritism or personal animosity towards any party to the proceedings. The allegation of bias was based on personal sentiments, not on evidence. Judge Nyanzi evidently performed his judicial duties with honesty, impartiality, integrity, professionalism, care and diligence. Pursuant to Article 233(b)(i) of the Ugandan Constitution, the Leadership Code of Conduct prohibits conduct likely to compromise the honesty, impartiality and integrity of public officials. Justice Nyanzi did not act in the knowledge of a real or perceived conflict of interests, contrary to his legal obligations under Sections 2(1), 8 and 12 of the Leadership Code Act 2002 [“LCA”].
Pursuant to Article 42 of the Constitution of Uganda 1995 a person aggrieved by a decision taken against him or her by administrative official or body has a right of appeal to a court of law to review the decision. Article 42 of the Constitution says: “Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Article 139(1) of the Constitution of Uganda says: “The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law.”
There was no evidence from ex-AG Nyombi which shows expression of concluded views out of court by Justice Nyanzi, which would have given rise to issues of perceived bias or prejudgment in the pending judicial review application to be decided soon. His provisional views expressed in court, mainly highlighted grounds in the JR application, including Illegality, Irrationality, Bias, Procedural Impropriety, and the tribunal
acting ultra vires beyond its jurisdiction.
Article 139 (2) of the Constitution says: “subject to the provisions of this Constitution and any other law, the decisions of any court lower than the High Court shall be appealable to the High Court.” The role of the High court is to decide whether the process by which the tribunal decision was reached, was lawful or unlawful. It is important to understand that the court’s focus is primarily upon the process leading to the making of the tribunal decision. The claimant has a likelihood of succeeding, because his application demonstrates that in the process that led to the decision of the Justice Catherine Bamugemereire’s tribunal recommendations: (a) failed to take into account relevant material considerations when reaching the decision (b) exclusively took into account extraneous considerations (c) recommended a decision that no reasonable decision-maker could reach (d) recommended a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had his mind to the question to be decided could have arrived (e) acted ultra vires or acted beyond its prescribed powers.
According to the JR application of the elected Kampala Mayor Lukwago, the applicant is seeking a Quashing Order, formerly known as an order of certiorari (i.e. a court order quashing Justice Bamugemereire’s report). A quashing order can defined as a discretionary remedy, obtained by an application of judicial review, in which the High Court orders decisions of administrative tribunals, inferior courts and administrative public authorities to be brought before it and nullify them if they are found to be ultra vires or contravened the law.
A closer look at Lukwago’s JR application reveals that it has a real reasonable prospect of sucess, because it is based on reliable facts and evidence as well as founded on the relevant provisions of the Law and proper appreciation of the court procedures in place.
By legal definition judicial review is a High Court procedure for challenging administrative actions. It enables individuals or groups to challenge in court the lawfulness of decisions taken by Ministers, Government Departments, tribunals and other public bodies. The jurisdiction of judicial review also extends to decisions of tribunals and inferior courts. In the case of R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322 Mr Justice Simon Brown (now Lord Brown of Eaton Under Heywood) observed that “judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.” Judicial review is the procedure by which a person can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.
The recusal application was not meritorious, because it was not founded on the provisions of the law relating to the bias, and most importantly the request was based ON unreliable information that tends logically to show the non-existence of facts relevant to the bias accusation.
References:
1. Eriasa Mukiibi Sserunjogi, “Law society suspends AG Peter Nyombi” The Monitor, 30 August 2013
URL: http://www.monitor.co.ug/News/National/Law-society-suspends-AG-Peter-Nyombi/-/688334/1973054/-/11rr68i/-/index.html
2. Ivan Rugambwa, “ULS suspends attorney general Peter Nyombi” The Independent, 2 By Ivan Rugambwa
URL: http://www.independent.co.ug/news/news/8179-uls-suspends-attorney-general-peter-nyombi
3. Derrick Kiyonga, “Judge blasts AG Nyombi” The Observer, 04 February 2014
URL:http://www.observer.ug/index.php?option=com_content&task=view&id=29972&Itemid=114
4. Anthony Wesaka, “You don’t know the law, judge tells AG” The Monitor, 05 February 2014
URL: http://www.monitor.co.ug/News/National/You-don-t-know-the-law--judge-tells-AG/-/688334/2193094/-/xydj8sz/-/index.html
5. Anthony Wesaka “Excitement as court rules Lukwago is still Kampala Lord Mayor,” The Daily Monitor, 29 November 2013
URL: http://www.monitor.co.ug/News/National/Excitement-as-court-rules-Lukwago-is-still-Kampala/-/688334/2092324/-/b12d1nz/-/index.html
4. Lukwago v Attorney General & Anor
URL: http://www.ulii.org/ug/judgment/high-court/2013/266
6. Gloria Nakiyimba “Court nullifies Kampala mayor impeachment as city operations shut down” Rfi English, Friday 29 November 2013
URL: http://www.english.rfi.fr/africa/20131129-court-nullifies-kampala-mayor-impeachment-city-operations-shut-down
7. Derick Kiyonga and Siraje Lubwama, “Judge restores Lukwago, blasts Attorney General” The Observer, 28 November 2013
URL:http://www.observer.ug/index.php?option=com_content&task=view&id=28873&Itemid=114
8. Anthony Wesaka, “High Court freezes Lukwago censure vote” The Daily Monitor, 28 November 2013
URL: http://www.monitor.co.ug/News/National/High-Court-freezes-Lukwago-censure-vote/-/688334/2091594/-/136bywnz/-/index.html
9. Mirembe Martina, “KCCA Councilors Told to Refund Money of Missed Meetings” Uganda Picks
URL: http://www.ugandapicks.com/2013/02/kcca-councilors-told-to-refund-money-of-missed-meetings-72950.html
10. Betty, “Nambozze Impasse at KCCA is not about Lukwago” The Observer, 14 March 2013
URL:http://www.observer.ug/index.php?option=com_content&view=article&id=24203:impasse-at-kcca-is-not-about-lukwago
By Paul Kiwuuwa, “KCCA councillors ordered to refund allowances” Feb 11, 2013
URL: http://www.newvision.co.ug/news/639710-kcca-councillors-ordered-to-refund-allowances.html
WBS TV, “Prime Minister named in deals”
URL: http://www.wbs-tv.co.ug/content.php?page=storydetails&ID=351#.Uvc2bfuIlU0
--
H.OGWAPITI
-----------------------------------------------------
"To announce that there must be no criticism of the president, or that we are to stand by the president right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."
---Theodore Rooseve
0 comments:
Post a Comment